Morgan v. Southern Pac. Co.

McFarland, J. The parties to this action are the same as in Morgan v. Southern Pacific Company, ante, p. 501, this day decided, in which plaintiff recovered a judgment for fifteen thousand dollars for alleged personal injuries received by being thrown from the steps of defendant’s car, which judgment was by this court affirmed. When she fell from the steps of the car she had in her arms her infant daughter, aged about two years; nine days afterwards the child died from an attack of pneumonia; and plaintiff brought this present action to recover damages for the death of said child, upon the theory that the pneumonia was caused by said fall. The jury gave her damages in the amount of twenty thousand dollars, for which sum judgment was rendered; and defendant appeals from the judgment, and from an order denying a motion for a new trial.

The evidence upon the issues of the alleged negligence of defendant’s employees at the time of the accident, and the alleged contributory negligence of plaintiff, was substantially the same as in the- other case; and as to those issues the verdict cannot be disturbed. There was some evidence tending slightly to show that the death of the child was caused by the accident, but it is not necessary to inquire whether or not it was sufficient to establish that fact, because the judgment must clearly be reversed on account of the excessive damages awarded by the the jury.

There was no averment in the complaint of any [516]special damage, and no averment of any damage at all, except the general statement that the child died, “ to the damage of plaintiff in the sum of fifty thousand dollars ”; and there was no evidence whatever introduced or offered upon the subject of damage. The jury therefore had nothing before them upon which to base damages, except the naked fact of the death of a female child two years old; and it is apparent at first blush that “ the amount of the damages is obviously so disproportionate to the injury proved as to justify the conclusion that the verdict is not the result of the cool and dispassionate discretion of the jury.”

The main element of damage to plaintiff was the probable value of the services of the deceased until she had attained her majority, considering the cost of her support and maintenance during the early and helpless part of her life. We think that the court erred in charging that “ the jury is not limited by the actual pecuniary injury sustained by hqr by reason of the death of her child.” An action to recover damages for the death of a relative was not known to the common law; it is of recent legislative origin. There are statutes in many of the American states providing for such an action, and it has been quite uniformly held that in such an action the plaintiff does not represent the right of action which the deceased would have had if the latter had survived the injury, but can recover only for the pecuniary loss suffered by the plaintiff on account of the death of the relative; that sorrow and mental anguish caused by the death are not elements of damage; and that nothing can be recovered as a solatium for wounded feelings. The authorities outside of this state are almost unanimous to the point above stated. The following are a few of such authorities: R. R. Co. v. Vandever, 36 Pa. St. 298; Iron Co. v. Rupp, 100 Pa. St. 95; R. R. Co. v. Freeman, 36 Ark. 41; R. R. Co. v. Brown, 26 Kan. 443; 40 Am. Rep. 320; Penn. Co. v. Lilly, 73 Ind. 252; Donaldson v. R. R. Co., 18 Iowa, 280; 87 Am. Dec. 391; R. R. Co. v. Paulk, 24 Ga. 356; R. R. Co. v. Miller, 2 Col. 466; Kesler v.